PLC Paper No. LS 125

Paper for the House Committee Meeting
of Provisional Legislative Council
on 20 March 1998

Legal Service Division Further Report on
Adaptation of Laws (Courts and Tribunals) Bill

Members may recall that this Bill received its First Reading on 11 February 1998 and the Legal Service Division has made an initial report (PLC Paper No. LS 93) to the House Committee on 13 February 1998.

2.The Bill seeks to adapt references to court nomenclatures and titles of judges in more than 230 Ordinances. We have now completed scrutiny of this Bill and have raised certain queries with the Administration.

3.We have noted that the Bill covers only Ordinances enacted before 1 July 1997. Ordinances enacted after that date and Ordinances such as the Official Languages Ordinance (Cap. 5) have not been adapted. Many terms such as "the Governor", "the Legislative Council", "the Crown", the titles of officials and references to English law are only adapted by this Bill where they are considered necessary. The Administration has said that any omissions and other adaptation proposals will be dealt with in a number of other Bills to be introduced in the next legislative session. As regards the Official Languages Ordinance, the Administration planned to repeal the relevant references in the next session.

4.We have further noted that there are some adaptation items that are not directly related to court nomenclatures and judges. The Administration has explained in their letter dated 17 March 1998 the purpose of some of these amendments and assured that these items relate either to obsolete provisions or provisions no longer appropriate. According to the Administration (p. 5 of their letter), the amendments are "to bring the provisions in line with the Basic Law and the status of Hong Kong as a Special Administrative Region of the People's Republic of China. There is no change of policies". Members may refer to the correspondences between the Legal Service Division and the Administration which are enclosed at Annex A.

5.In response to our queries, the Administration has agreed to propose Committee stage amendments which are attached at Annex B. They are some omissions spotted by us and are only technical amendments. We are satisfied that the legal and drafting aspects of the Bill are now largely in order. Subject to Members' views, the Bill is ready for resumption of Second Reading debate.

Encl.

Prepared by

HO Ying-chu, Anita
Assistant Legal Adviser
Provisional Legislative Council Secretariat
19 March 1998

CSO/ADM CR2/3231/97(98) Pt. 5	By Fax No. 2524 7103
LS/B/51
2869 9209
2877 5029

5 March 1998

Mr. K C Yau
Assistant Secretary (ADM) 2
The Director of Administration's Office
Room 1237 Central Government Office
West Wing
Lower Albert Road
Hong Kong

Dear Mr. Yau,



We are scrutinizing the above Bill with a view to advising Members and have the following observations:

(A) General observation

1.We note that adaptations have been made to the titles of "the Chief Justice of the Court of Final Appeal" and "the Chief Judge of the High Court". However, we note that, for instance in Form No. 28 of the High Court Ordinance (Cap. 4), a witness is now required to attend the High Court under a Writ of subpoena but to be witnessed by the Chief Justice of the Court of Final Appeal. Has the Judiciary confirmed that the duties of the Chief Justice and the Chief Judge are to be as such and that the relevant adaptations in all the Ordinances are now in order? (Incidentally, the definition of Chief Justice as to mean the Chief Justice of the Court of Final Appeal is not found in the High Court Ordinance).

2.The term "Supreme Court" should no longer appear in the statutes. Nonetheless, we note that in Form No. 72 of Cap. 4, only the heading "SUPREME COURT" has been substituted by "HIGH COURT" but not in the Form (see item 2(c) (i) and (ii)). Some headings containing "Supreme Court" (e.g. in sections 51, 57 & 59 of Cap. 4, (item 1(d) & (e)) and the heading in Coroners Rules ( item 18) have not been amended. There are still references to "Supreme Court" in the contents page, Note index page of Cap. 4. The above are only some of the observations on cursory scrutiny. Has the term "Supreme Court" been adapted throughout all the ordinances?

3.For the term "High Court", it should be adapted to either "the Court of First Instance" or sometimes, the term should be retained. We note that in some places, e.g. headings in section 40 of the Magistrates Ordinance(Cap. 227), section 68 of the District Court Ordinance (Cap 336), the term "High Court" has not been amended.

4.Some old titles such as "The Chief Secretary", , "The Attorney General", and in fact in all other Ordinances, have not been amended. Would the Administration take this opportunity to amend these titles? Even if all the titles of judges and court names are adapted, it is still an incomplete adaptation exercise as far as each Ordinance is concerned.

5.Whilst the term "the crown" has been adapted in some Ordinances such as in the District Court Ordinance (but not in its subsidiary legislation), it still appears in many other Ordinances, for instance, in section 45, Orders 65 & 78 of Cap. 4 and section 38 of the Small Claims Tribunal Ordinance (Cap. 338) (item 31). Should this term be adapted throughout all the Ordinances, or at least in the court-related Ordinances?

6.The interpretation of many terms depend on the Interpretation and General Clauses Ordinance (Cap. 1). In Order 1, rule 3 and Order 65, it is specifically stated that Cap. 1 shall apply for the interpretation of these rules. We understand that the Adaptation of Laws (Interpretative Provisions) Bill amending Cap. 1 has been introduced into the Provisional Legislative Council. Should all other adaptations follow the enactment of that Ordinance in case there are consequential amendments?

7.We note that the last item adapted is No. 96 of 1997, i.e. Ordinances published on 30 June 1997. Ordinances and subsidiary legislation published after 1 July 1997 have not been adapted. What measures are to be taken to deal with those legislation enacted after 1 July 1997?

(B) Individual Ordinances

1. Item 1- Supreme Court Ordinance (Cap. 4)

After adaptation, words such as "the Chancery, Family and Queen's Bench Divisions of the High Court of Justice in England" in section 12(2)(a), "Letters Patent under the Public Seal by the Governor" in section 6(1), "British Consul ..... (or .... one of Her Majesty's Secretaries of State) ....." in the sixth para. of Form No. 35, still appear. Has the Administration considered "localising" these sections and other similar provisions?

2.Item 9 - District Court Ordinance (Cap. 336)

1. In section 75(2), we note that charge sheet in the name of "Her Majesty" has been deleted whilst in the First Schedule, "The Queen" is substituted by "Hong Kong". Section 19 of Hong Kong Reunification Ordinance provides that criminal proceedings are to be brought in the name of "HKSAR". In view of the confusion that might be caused by this amendment, we strongly suggest that amendment should be made to this item 9(r) .
   
   
2. In section 13, it is stated that "the seal of the Court shall incorporate a device and impression of the Royal Arms"? Has the seal been changed?
   
   

3.Coroners Ordinance (27 of 1997)

"The Governor in Council" is now substituted by "The Chief Executive in Council" ( item 19(h)). However, in the Chinese text, it now reads as . Should be also adapted to ?

4. Lands Tribunal Rules (Cap. 17 sub. leg.)

In item 21(d)(ii), (e) and (f) (ii), (vi) (vii), we note that opportunity has been taken to repeal or amend some subrules in connection with the Chinese language and not just adaptations of names to courts and tribunals. Can you bring to the attention of the Members what other amendments you have made apart from court names and titles of judges? Are there any amendments that involve change of policies?

5. Labour Tribunal Ordinance (Cap. 25)

The term in section 10(5) has not been amended to (item 23 (e)).

6. Commissions of Inquiry Ordinance (Cap. 86)

The term in section 2(2) (item 28(b)), the term "His Excellency the Governor" in Form 2 to Schedule 1, the term in section 9 ( item 28(f)) have not been amended.

7.The Ombudsman Ordinance(Cap. 397) and Jury Ordinance (Cap. 3)

The term in Schedule 1 of Cap. 397 (item 34(c)) and in section 5(a) and (r) of Cap. 3, has not been amended to .

8. Probate and Administration Ordinance (Cap. 10)

The terms in sections 72, 73 and in sections 5, 6 and 7 (item 53) have not been adapted.

9. Official Languages Ordinance (Cap. 5)

We note that in the Magistrates Ordinance, the terms "the crown", "The Governor in Council", "the High Court", , , have all been adapted. However, in section 6 of this Ordinance, the terms , , , "the High Court" have not been amended. In sections 4, 4A, 4B, 4C, the term "Governor in Council", and in section 4(3) the term still appears. This kind of omission appears in many other Ordinances, say, in Bankruptcy Ordinance (Cap 6), Landlord and Tenant (Consolidation) Ordinance (Cap 7), Evidence Ordinance (Cap. 8), Defamation Ordinance (Cap. 21), Bills of Sale Ordinance (Cap. 20), to name just a few. Is there any special reason for amending some and not others?

We have checked some Ordinances, in particular, the 11 court-related Ordinances that you stated in the Brief to have been adapted in a comprehensive manner. Given the above observations which are only some illustrations and are not conclusive, we wonder if this Bill can be regarded as a complete adaptation exercise and that it is in order from the legal point of view. Perhaps you can let us know what measures are to be taken if there are omissions/inaccurate amendments.

Hoping to hear from you soon.


Yours sincerely,

(Anita Ho)
Assistant Legal Adviser

CSO/ADM CR2/3231/97(98) Pt. 5	By Fax No. 2524 7103
LS/B/51
2869 9209
2877 5029

13 March 1998

Ms Cecilia Yen
Assistant Director of Adm 2
The Director of Administration's Office
Administration Wing
12/F, West Wing
Central Government Offices
11 Ice House Street
Hong Kong

Dear Ms Yen,



Further to my letter of 5 March 1998 and your letters of 11 and 12 March 1998, I have the following points to make on the legal and drafting aspects of the Bill.

1.The reference of the term "Supreme Court" in Form 72, Note index page of Cap. 4 (item 2) has not been dealt with.

2.Has the Judiciary confirmed that Form No. 28 of Cap. 4 is now to be as amended? (My previous letter of paragraph A1 referred.)

3.Reading through the Bill, there are apparently some items that are not directly related to the adaptation of terms, e.g. in items 9(q), 17(g), 21(e), 34(i), 41(d)(iv) & (g), 46(f), 57(b), 61(a), 62(a), 65(f) to (o), 73(b), 94(d), 99(a), 102(a), 134(g), 150(d), 197(c) and 214. Please explain the purposes of these amendments. Are there any change of policies involved or are these just ancillary amendments?

4.With regard to section 6 of Cap. 5, you stated that the terms "High Court", etc. are not to be amended since they will soon be repealed. May I know when will the Amendment Bill be introduced into this Council? Would such terms remain on the statute books for more than a year?

5.In item 69, the term in section 8 of Cap. 32K has not been amended.

6.In item 98, would the Administration consider amending the term "Governor" in Schedule 2 to the Judicial Officers Recommendation Commission Ordinance (Cap. 92)?

7.In item 136, the term still appears in Rules 2 and 9 of Cap. 159E.

8.In item 171, the term in the Forms has not been changed to . Moreover, the term "R v. " and its Chinese version still appears. Should the term "R" be amended to "HKSAR"?

9.In item 173, should the term " the Queen v. " in the Schedule of the Indictment Rules be amended along the same line as the above paragraph?

Given limited time and resources, I can only try my best endeavours to scrutinize the 324 items (involving over 10,000 entries) of amendments in this Bill. There might be omissions and I cannot say that the points raised are meant to be exhaustive. What will the Administration do should there be other omissions?

As a report has to be submitted to the House Committee next week, I shall be grateful if you can let me have your reply by noon, next Monday.


Yours sincerely,


(Anita Ho)
Assistant Legal Adviser